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Recap of the Supreme Court’s decision in Harris v. Quinn.

Question being answered by decision: Are the First Amendment rights of public employees who do not wish to join a union violated when those workers have to pay a representation fee to their union?

Prior to the decision: In 1947, the Michigan Legislature passed, and Gov. Kim Sigler (R) signed, the Hutchison Act. This Act established the rules under which Michigan’s government employees at the state and municipal levels would be able to form labor unions and collectively bargain. It was designed to regularize labor-management relations in the public sector and locate workers’ rights under one statute, rather than having a patchwork of state laws governing the workplace. But the law was also quite harsh in its treatment of public employees engaging in collective action: Any employee that engaged in strike action was to be terminated from their employment forthwith. The Michigan Legislature would eventually return to the table and drastically alter Hutchison with Public Act 379, which would become known as the Public Employment Relations Act (PERA). This new law brought the Michigan statutes in line with the National Labor Relations Act (NLRA) and granted public employees the right to form unions. Amongst many other things, PERA created a mechanism by which workers could elect a particular union to represent them at the bargaining table and required that all public employees pay an agency fee to the union that represented them. Agency fees are important because the NLRA requires that a union represent all those who are in the bargaining unit equally, regardless of their membership status; mandating the paying of representation fees gets a union over the free-rider problem that plagues unions in so-called “right-to-work” states.

This fee was too much for some Detroit teachers, who felt that they were being forced to pay into an organization whose political goals they disagreed with. Detroit educator D. Louis Abood filed a lawsuit against the Detroit Board of Education in 1969, two years after the Detroit Federation of Teachers became the bargaining agent for the city’s K-12 teachers. While the case wound its way towards the U.S. Supreme Court, the Michigan Supreme Court found in another case that state law prohibited the agency shop; this discrepancy was resolved through a 1973 statute legalizing the agency fee. When Abood hit the state’s highest court again, they found the 1973 statute constitutional with the caveat that the fees had to go towards non-political activities. The U.S. Supreme Court would find no differently in May 1977, rejecting the plaintiffs’ arguments that collective bargaining was “inherently political” and that the Hanson and Street decisions which prior courts had relied on for their rulings were limited to the private sector only.

Abood provided a way for public sector unions to virtually eliminate their free-rider problem, provided they did not operate in a state with “right-to-work” laws.

The lead-up to today’s decision: The Illinois General Assembly passed a bill in 2003 that designated home care workers as state employees with the purpose of allowing them the right to collectively bargain with the state. After Gov. Rod Blagojevich (D) signed the legislation, a majority of workers voted to affiliate with the Service Employees International Union (SEIU), making them the workers’ bargaining representative. Patricia Harris and seven other home care workers filed suit against the state of Illinois, arguing essentially the same case that D. Louis Abood had argued nearly 40 years ago: that joining the union was an infringement on their First Amendment rights. Judging from the oral arguments and the justices’ reactions to them, as well as the decision in Knox v. SEIU that declared the protections laid out in Abood to be “an anomaly”, most seemed to be expecting that the Court would find for the plaintiffs. This became even less shocking when Justice Samuel Alito, who authored Knox, was revealed to have also written Harris. We were largely waiting on the scope of the ruling, and whether it would end the precedent set forth in Abood.

Decision: The 5-4 decision in favor of the appellants did not overturn Abood, but it essentially limited the precedent to full-time public employees. As Benjamin Sachs points out in a great roundup of his own over at On Labor, the language of the decision spoke loud and clear: Alito wanted to completely overturn Abood. He devotes all of Part II, Section D (pgs. 17-20) to pointing out the reasons why Abood should not be allowed to stand: the 1977 court misunderstood the rulings, the differences between public and private sector employees should have been given more weight, the line between representation costs and political activity is blurred in public sector unionism, and that exclusive representation does not depend on classification as an agency shop. My guess is that Justice Antonin Scalia, who recognized the free rider problem faced by labor unions in his partial affirmation in Lehnert v. Ferris Faculty Association, did not see a need to strike down Abood for these reasons. In any case, the framing of the decision practically begs for a full challenge to Abood from organizations like the National Right to Work Committee, representing someone who would be considered a “full-fledged” public employee. Justice Alito also argues that because Illinois law dramatically limits the role of the state in dealings between a patient and their home care worker, the Abood precedent did not apply here.

Implications: This deals a big blow to those unions who organize in the home care industry, as the decision essentially makes the industry “right-to-work”. As Prof. Sachs points out, the unions will find a way to get around this; I agree with that sentiment, having written about the struggles of building unions in right-to-work states previously. It also has a gendered component as well, as Sarah Jaffe points out in her piece for In These Times. The only home care workers I have ever known, not just in my personal life but also in my very brief time organizing for the Missouri Home Care Union, were Black women. And as Roland Zullo points out in his 2012 article for Labor Studies Journal, this particular group of employees is the most likely to enter unionized employment from either unemployment or non-union employment. For a Supreme Court that seems willing to reverse the few labor rights that workers have in their corner, it is obvious that they would seek to halt the drive to organize a large group of underpaid care workers. Others have noted that this increases the importance of voting for a Democrat in the next presidential election but, considering the union-busters in President Obama’s cabinet and some of his nominees for the lower courts, to say nothing of the likely Republican filibuster of any decent nominee that would switch the Court’s composition, that seems like a bit of a stretch. The best line of defense against a ruling like this will come from the organizers and field representatives on the ground, engaging in quality service of their membership and negotiating contracts that will bring workers into the fold.

Kagan’s dissent: In a dissent joined by Justices Sotomayor, Ginsburg, and Breyer, Justice Elena Kagan laid out the case for why Abood is sufficient for a finding in favor of the state of Illinois. She points out that while the person receiving care sets the terms of employment in that particular context, the state sets parameters for the industry’s operation as a whole. That gives the state more than the small interest that Alito’s decision limits it to, and undermines a key argument for said decision. Kagan also gets into an area that Alito’s decision misses, presumably because it is close to the bottom of his priority list: The working conditions experienced by those who provide home care. In addition to feeding, clothing, bathing, and cleaning, sometimes they have to deal with the attitudes of those they serve; the home care worker that worked with my Uncle Junior after his stroke had to deal with his abuse as much as we did. Because of this, the industry is notorious for having high amounts of turnover, which can be destabilizing for patients at a time when a familiar face can make all the difference. Kagan also hit out at Alito’s notion that because workers are all paid the same according to state law, that there was no need for an agency agreement. This sounds ridiculous on its face and Kagan hammers him on it, pointing out the benefits that all workers have accrued because of the SEIU’s bargaining on their behalf. This is the important part, however, and signals what Alito is trying to accomplish with his opinion: “The idea that Abood applies only if a union can bargain with the State over every issue comes from nowhere and relates to nothing in that decision—and would revolutionize public labor law.”